Middle-aged, Republican homemakers are not normally found protesting in the street, which is why Jordan Fogal made such an effective street protester.
"Lady, I had to stop," people would say. "Somebody must have really pissed you off."
"Oh my God! That's an area we're looking at! Oh my God! And they're not doing anything to help you?"
"I had no idea! I thought when you spent that kind of money..."
"Here," Jordan would say, "take another flier. I've got 10,000 more."
She was on television, in the papers. City Council members told her they would be watching for this builder, come permit time. ("It's terrible she paid a lot of money for a house she can't live in," council member Carol Alvarado says.) Prospective buyers at Tremont Tower looked at the pictures and got back in their cars. The staff at Tremont Tower called the police, she says, tried to have her car towed, and fenced in the area where motorists had pulled over to talk. When word came that she was being dragged into arbitration, Jordan realized she had "finally gotten their attention." Her fight was about to grow much larger.
THE BUILDERS' LAWYERS had filed a claim through the country's oldest and largest arbitration firm, the nonprofit American Arbitration Association. They sought declaratory relief from any complaint about "alleged construction defects"past, present, and futurein Jordan Fogal's home.
Jordan still remembers her pleasant illusions of arbitrationhow much "more civilized and nice" it sounded than just suing someone, "like a mom who sits down with her children and says, Now, this is the way I see it. Now you two go do what's right.'"
What she found instead seemed neither pleasant nor fair. The Arbitration Association informed her that she would be expected to pay half of the arbitrator's fees roughly $1,500 a day for the arbitration itself and $750 for a preliminary study of the problemplus half of the charges to rent the hearing room and hire the stenographer; plus the cost of expert witnesses, if any; plus, if she wanted one, the cost of an attorney. Plus, since the proceeding would conclude all disputes against the builders, if she wished to file a counterclaim seeking reimbursement for the cost of her property, there would be an additional filing fee of $8,500.
The arbitrator would be chosen from a list of lawyers and mediators. His decision would not be required to have any basis in law, could nowhere be appealed, and would likely come with a gag order. Jordan filed for hardship relief, but her builders' lawyer, William S. Chesney III, insisted that she get none. She wrote long, emotional letters to her "solutions manager" at the arbitration firm, who shared them with Chesney and began sending her bills. It was like reasoning with a machine, she says, and in her letters and fliers she let the world know about her outrageabout the "shocking costs" of binding arbitration, the "stacked deck" of the arbitrator, that "henchman for torturing victims [of] the builders."
"MRS. FOGAL HAS BECOME rather high-profile," observed Charles Turet, the lawyer for Thibodeau, when I visited his office. "This is the first time we've encountered anything of this magnitude."
The magnitude was such that Turet's client had found the need to talk after all. Turet said they were certainly not afraid of the facts of the case, "as long as all of the facts get out." Then he added they really couldn't discuss the facts in detail. It was therefore left to Thibodeau, a glaring, goateed man, to explain that he thought Jordan was being quite unfair. "She's gone out and created this frenzy!" he said. "This crusadecalling radio stations, sitting on the corner with lemons." And "if she thinks the way to solve problems is to extort money with lemons, fine! But I'm not going to play that game."
So did Thibodeau stand behind his work? Thibodeau paused. Yes, he answered: He would always ask his customers to do a thorough walk-through, and they wouldn't close the deal if the customer had an issue. "Our goal is not to have to go back into someone's house after closing," he said. Or, as the lawyer Chesney put it, not to "be held hostage to every little thing Mrs. Fogal claims."
"You know," Chesney went on, "it is absolutely amazing how many people out there don't have the problems Mrs. Fogal has."
Told of the lawsuit brought against them by the residents of Hyde Park Crescent two months earlier, Turet said, "That's news to us." Chesney said to me, "You'd better see the letters they wrote to us, because we never got them."
And Thibodeau said he really had to go.
"THOSE LYING SACKS OF...,"said William Ferebee, the lawyer representing the Fogals' neighbors. In his office across town from Turet's, he produced a sheaf of court documents that had been sent by certified mail to the builders' lawyers, as well as the responses, signed by William S. Chesney III.
The case is likely to drag out for a while. Facing lawsuits, builders often drain their companies of assets and start anew under a different name. Thibodeau and Casimiro have both recently started new companies, and Chesney claims Thibodeau's new company isn't liable for work done by the old company.
But neither Thibodeau nor Casimiro can get rid of Jordan Fogal. Whichever business names they travel by, she continues to dog them. Already she has helped to get their companies ejected from the Better Business Bureau. Unable to sue their builders, the Fogals are now being sued for "business disparagement" by a builder with connections to Casimiro and Thibodeau. They face arbitration, foreclosure, bankruptcy"more legal troubles than you can shake a stick at," says Jordan's lawyer. But after what she's been through, Jordan says, "I don't think you can ever walk away."
In her apartment, Jordan Fogal points to an ancient photo and says, "This is what Mr. Thibodeau doesn't know about me." It's a picture of several old menher great-uncles from Alabama. They decided that until the South rose again, they would never shave their beards. "And they were all buried with very long beards."